Oral Argument Requested

Transcription

1 Appellate Case: Document: Date Filed: 08/22/2018 Page: 1 IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT MICHEAL BACA, POLLY BACA, and ROBERT NEMANICH, Case No v. Plaintiffs-Appellants, COLORADO DEPARTMENT OF STATE, Defendant-Appellee. On Appeal from the United States District Court For the District of Colorado The Honorable Wiley Y. Daniel, Senior District Court Judge D.C. No. 1:17-cv WYD-NYW APPELLEE S RESPONSE BRIEF CYNTHIA H. COFFMAN Attorney General FREDERICK R. YARGER* Solicitor General LEEANN MORRILL* First Assistant Attorney General MATTHEW GROVE* Assistant Solicitor General GRANT T. SULLIVAN* Assistant Solicitor General State of Colorado, Department of Law 1300 Broadway, 10th Floor Denver, Colorado (720) *Counsel of Record Attorneys for Colorado Department of State Oral Argument Requested

2 Appellate Case: Document: Date Filed: 08/22/2018 Page: 2 TABLE OF CONTENTS Page TABLE OF AUTHORITIES... iii GLOSSARY... xii PRIOR OR RELATED APPEALS... xiii INTRODUCTION... 1 ISSUES ON APPEAL... 3 STATEMENT OF THE CASE AND FACTS... 4 I. Colorado, like most other States, binds its presidential electors to the outcome of the popular vote II. III. Baca I: Appellants are denied preliminary injunctive relief Baca II: Appellants refile their federal complaint but are again denied relief STANDARD OF REVIEW SUMMARY OF THE ARGUMENT ARGUMENT I. The district court properly dismissed Appellants lawsuit for lack of standing under Rule 12(b)(1) A. As former subordinate state officials, Appellants lack standing under the political subdivision doctrine i

3 Appellate Case: Document: Date Filed: 08/22/2018 Page: 3 B. Neither Coleman v. Miller nor Board of Education v. Allen confers standing on Appellants C. No exception to the political subdivision doctrine applies here II. The district court properly dismissed Appellants challenge to Colorado s binding statute for failure to state a claim under Rule 12(b)(6) A. The text of the U.S. Constitution permits the State to bind its presidential electors B. The U.S. Supreme Court and multiple lower courts permit the States to bind their presidential electors C. History and longstanding practice confirm that Colorado s binding statute is consistent with the Constitution D. Appellants reliance on federal preemption principles is misplaced CONCLUSION STATEMENT REGARDING ORAL ARGUMENT CERTIFICATE OF COMPLIANCE CERTIFICATE OF DIGITAL SUBMISSION AND PRIVACY REDACTIONS CERTIFICATE OF SERVICE ii

4 Appellate Case: Document: Date Filed: 08/22/2018 Page: 4 CASES Abdurrahman v. Dayton, TABLE OF AUTHORITIES iii Page No. 16-cv-4279 (PAM/HB), 2016 WL (D. Minn. Dec. 23, 2016)... 10, 51, 62 Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125 (2011) Arizona State Legislature v. Arizona Indep. Redistricting Comm n, 135 S. Ct (2015)... 32, 33 Baca v. Hickenlooper ( Baca I ), No. 16-cv WYD-NYW (D. Colo.)... passim Baca v. Williams ( Baca II ), No. 17-cv WYD-NYW (D. Colo.)... 13, 14 Baca v. Williams, Colo. Supreme Court. No. 2016SA318 (Dec. 16, 2016) Basso v. Utah Power & Light Co., 495 F.2d 906 (10th Cir. 1974) Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005) Bd. of Cnty. Comm rs of La Plata v. Brown Retail Group, Inc., 598 F. Supp. 2d 1185 (D. Colo. 2009) Bd. of Cty. Comm rs v. Fifty-First Gen. Assembly, 599 P.2d 887 (Colo. 1979)... 36

5 Appellate Case: Document: Date Filed: 08/22/2018 Page: 5 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2009) Bender v. Williamsport Area Sch. Dist., 475 U.S. 534 (1986) Blessing v. Freestone, 520 U.S. 329 (1997) Board of Education v. Allen, 392 U.S. 236 (1968)... passim Branson Sch. Dist. RE-82 v. Romer, 161 F.3d 619 (10th Cir. 1998)... 38, 39 Burnap v. United States, 252 U.S. 512 (1920) Burroughs v. United States, 290 U.S. 534 (1934) Bush v. Gore, 531 U.S. 98 (2000) Chenault v. Carter, 332 S.W.2d 623 (Ky. 1960) Chiafalo v. Inslee, 224 F. Supp. 3d 1140 (W.D. Wash. Dec. 15, 2016) Chiafalo v. Inslee, No , 2016 U.S. App. LEXIS (9th Cir. Dec. 16, 2016) Citizens for Responsible Gov't State PAC v. Davidson, 236 F.3d 1174 (10th Cir. 2000) City of Hugo v. Nichols, 656 F.3d 1251 (10th Cir. 2011)... 23, 24, 39, 40 iv

6 Appellate Case: Document: Date Filed: 08/22/2018 Page: 6 City of S. lake Tahoe v. Cal. Tahoe Reg l Planning Agency, 625 F.2d 231 (9th Cir. 1980) Coleman v. Miller, 307 U.S. 433 (1939)... 30, 31, 32 Columbus & Greenville Railway v. Miller, 283 U.S. 96 (1931) Cooke v. Hickenlooper, No. 13-cv MSK-MJW, 2013 WL (D. Colo. Nov. 27, 2013)... 24, 25, 37 Cty. Court of Braxton Cty. v. West Virginia ex rel. Dillon, 208 U.S. 192 (1908) Denver Urban Renewal Auth. v. Byrne, 618 P.2d 1374 (Colo. 1980) District of Columbia v. Heller, 554 U.S. 570 (2008) Donelon v. La. Div. of Admin. Law ex rel. Wise, 522 F.3d 564 (5th Cir. 2008)... 24, 25, 28 Drake v. Obama, 664 F.3d 774 (9th Cir. 2011)... 34, 37 FERC v. Mississippi, 456 U.S. 742 (1982) Finch v. Miss. State Med. Ass n, Inc., 585 F.2d 765 (5th Cir. 1978)... 25, 29, 34 Fitzgerald v. Green, 134 U.S. 377 (1890) Gelineau v. Johnson, v

7 Appellate Case: Document: Date Filed: 08/22/2018 Page: F. Supp. 2d 742 (W.D. Mich. 2012) Gilmor v. Thomas, 490 F.3d 791 (10th Cir. 2007) Golan v. Holder, 609 F.3d 1076 (10th Cir. 2010)... 17, 18 Gonzaga Univ. v. Doe, 536 U.S. 273 (2002) Hawke v. Smith, 253 U.S. 221 (1920) Holt v. United States, 46 F.3d 1000 (10th Cir. 1995) Jones v. Bush, 122 F. Supp. 2d 713 (N.D. Tex. 2008) Karcher v. May, 484 U.S. 72 (1987) Kerr v. Hickenlooper, No. 11-cv RM-NYW, 2017 WL (D. Colo. May 4, 2017)... 24, 33 Khalik v. United Airlines, 671 F.3d 1188 (10th Cir. 2012) Koller v. Brown, 224 F. Supp. 3d 871 (N.D. Cal. Dec. 16, 2016)... 10, 51 Leslie Miller, Inc. v. State of Arkansas, 352 U.S. 187 (1956) Lippoldt v. Cole, 468 F.3d 1204 (10th Cir. 2006) vi

8 Appellate Case: Document: Date Filed: 08/22/2018 Page: 8 Marbury v. Madison, 5 U.S. 137 (1803) Martin v. Dist. Court, 550 P.2d 864 (Colo. 1976) McPherson v. Blacker, 146 U.S. 1 (1892)... passim Mesa Verde Co. v. Montezuma Cty. Bd. of Equalization, 831 P.2d 482 (Colo. 1992) Mink v. Suthers, 482 F.3d 1244 (10th Cir. 2007) Myers v. United States, 272 U.S. 52 (1926) N.Y. State Dep t of Soc. Servs. v. Dublino, 413 U.S. 405 (1973) Nat l Endowment for the Arts v. Finley, 524 U.S. 569 (1998) NLRB v. Noel Canning, 134 S. Ct (2014) Pride v. Does, 997 F.2d 712 (10th Cir. 1993) Raines v. Byrd, 521 U.S. 811 (1997) Ray v. Blair, 343 U.S. 214 (1952)... passim Romer v. Fountain Sanitation Dist., 898 P.2d 37 (Colo. 1995) vii

9 Appellate Case: Document: Date Filed: 08/22/2018 Page: 9 Sch. Dist. of Abington Township v. Schempp, 374 U.S. 203 (1963) Schlesinger v. Reservists Cmte. to Stop the War, 418 U.S. 208 (1974) Smith v. Indiana, 191 U.S. 138 (1903) South Dakota v. Dole, 483 U.S. 203 (1987) Spreckels v. Graham, 228 P (Cal. 1924)... 52, 62 St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169 (10th Cir. 1979)... 7 Stanford v. Butler, 181 S.W.2d 269 (Tex. 1944) State ex rel. Neb. Republican State Cent. Comm. v. Wait, 138 N.W. 159 (Neb State v. Gifford, 126 P (Idaho 1912) Tarsney v. O Keefe, 225 F.3d 929 (8th Cir. 2000) Thomas v. Mundell, 572 F.3d 756 (9th Cir. 2009)... 15, 25, 51, 52 U.S. Term Limits v. Thornton, 514 U.S. 779 (1995) United States v. Sprague, 282 U.S. 716 (1931) viii

10 Appellate Case: Document: Date Filed: 08/22/2018 Page: 10 United States v. Woods, 571 U.S. 31 n.5 (2013) US Airways, Inc. v. O Donnell, 627 F.3d 1318 (10th Cir. 2010) Van Zanen v. Qwest Wireless, L.L.C., 522 F.3d 1127 (10th Cir. 2008) Walker v. United States, 93 F.2d 383 (8th Cir. 1937) Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008) Wentz v. Thomas, 15 P.2d 65 (Okla. 1932) Williams v. Baca, Denver Dist. Court No. 2016CV34522 (Dec. 13, 2016) Williams v. Mayor & City Council of Balt., 289 U.S. 36 (1933) Wyoming v. Livingston, 443 F.3d 1211 (10th Cir. 2006) CONSTITUTIONS U.S. CONST. amend. X U.S. CONST. amend XII... 47,60 U.S. CONST. amend. XVII U.S. CONST. art. I, 2(4) U.S. CONST. art. II, 1... passim U.S. CONST. art. II, ix

11 Appellate Case: Document: Date Filed: 08/22/2018 Page: 11 STATUTES (3), C.R.S. (2018) (1), C.R.S. (2018)... 5, (3), C.R.S. (2018) (5), C.R.S. (2018)... 1, 5, 36, , C.R.S. (2018) , C.R.S (2018) COLO. SESS. LAWS U.S.C U.S.C , 65 3 U.S.C U.S.C (b)(2)(E)(i) U.S.C , U.S.C , 37 D.C. CODE ANN (g)(2) (2018) MICH. COMP. LAWS ANN (2018) RULES FED. R. CIV. P. 12(b)(1)... passim FED. R. CIV. P. 12(b)(6)... passim OTHER AUTHORITIES 11 Annals of Congress , 7th Cong., 1st Sess. (1802) B Charles Alan Wright, Arthur R. Miller, et al., FEDERAL PRACTICE & PROCEDURE (3d ed. 2008)... 34, CONG. REC. H189 H190 (daily ed. Jan. 6, 2017) x

12 Appellate Case: Document: Date Filed: 08/22/2018 Page: 12 3 Joseph Story, Commentaries on the Constitution of the United States 1457 (1833)... 58, 61 Beverly J. Ross & William Josephson, The Electoral College and the Popular Vote, 12 J. L. & POLITICS 665 (1996)... 43, 50 Elizabeth D. Lauzon, Annotation, Challenges to Presidential Electoral College and Electors, 20 A.L.R. Fed. 2d 183, 5 (2007) Hearings on H.R Before Subcomm. 3 of the House Cmte. on the Dist. of Columbia, 87th Cong. (May 15, 1961) John A. Zadrozny, The Myth of Discretion: Why Presidential Electors Do Not Receive First Amendment Protection, 11 COMMLAW CONSPECTUS 165 (2003) Lucius Wilmerding, Jr., The Electoral College (Boston: Beacon Press 1958) Matthew J. Festa, The Origins and Constitutionality of State Unit Voting in the Electoral College, 54 VAND. L. REV (2001) National Conference of State Legislatures, The Electoral College (Aug. 22, 2016)... 4, 43 Note, State Power to Bind Presidential Electors, 65 COLUM. L. REV. 696 (1965)... 55, 58 Robert M. Hardaway, The Electoral College and the Constitution (1994)... passim S. Rep. No. 22, 19th Cong., 1st Sess. (1826) THE FEDERALIST No. 68 (A. Hamilton) Vasan Kesavan, Is the Electoral Count Act Unconstitutional?, 80 N.C. L. REV (2002) xi

13 Appellate Case: Document: Date Filed: 08/22/2018 Page: 13 GLOSSARY NCSL National Conference of State Legislatures, The Electoral College (Aug. 22, 2016), (last visited Aug. 2, 2018). xii

14 Appellate Case: Document: Date Filed: 08/22/2018 Page: 14 PRIOR OR RELATED APPEALS Baca v. Hickenlooper, 10th Cir. No (10th Cir. Dec. 16, 2016) (unpublished). Baca v. Williams, Colo. Supreme Court No. 2016SA318 (Colo. Dec. 16, 2016) (unpublished). xiii

15 Appellate Case: Document: Date Filed: 08/22/2018 Page: 15 INTRODUCTION Colorado, like 28 other States and the District of Columbia, requires its presidential electors cast their Electoral College ballots for the presidential and vice-presidential candidates who won the State s popular vote. COLO. REV. STAT (5) (2018). This is the second federal lawsuit that Appellants Polly Baca and Robert Nemanich have filed related to their roles as presidential electors in the 2016 Electoral College. See Baca v. Hickenlooper ( Baca I ), No. 16-cv WYD- NYW (D. Colo.). In the first suit, the district court characterized their challenge as a political stunt that improperly sought to alter the outcome of the 2016 presidential election. Aplee. Supp. Appx. 72. It thus rejected their eleventh-hour request for a preliminary injunction to enjoin enforcement of Colorado s statute. This Court declined to disturb that decision, holding that Ms. Baca and Mr. Nemanich had not demonstrated a likelihood of success on the merits.

16 Appellate Case: Document: Date Filed: 08/22/2018 Page: 16 Having failed to obtain a preliminary injunction, Ms. Baca and Mr. Nemanich proceeded to follow Colorado law by casting their Electoral College ballots for the presidential and vice-presidential candidates who won Colorado s popular vote Hillary Clinton and Timothy Kaine. But a third elector, Micheal Baca, violated Colorado law by attempting to cast his ballot for an alternative candidate who appeared on no ballot in the general election. Consistent with state law, Mr. Baca s ballot was not counted and he was replaced with a substitute elector. Appellants contend these actions which they acknowledge are fully consistent with Colorado law violated their federal constitutional rights. This Court should affirm the district court s order of dismissal. As an initial matter, Appellants lack Article III standing to bring their claim, depriving the federal courts of subject matter jurisdiction. As former subordinate state officials, Appellants are precluded by the political subdivision doctrine from suing their parent State in federal court to challenge the constitutionality of a state statute. 2

17 Appellate Case: Document: Date Filed: 08/22/2018 Page: 17 But even assuming Appellants can overcome the political subdivision doctrine, they have failed to state a claim as a matter of law. Article II of the Constitution grants the States exclusive and plenary authority over the appointment of their presidential electors, allowing them to attach conditions to the appointment and, if necessary, remove an elector for failing to comply with the State s conditions. Nothing in the Constitution abrogates this state power or affords former electors Article III standing to challenge the State s lawful conditions. As the district court found, any other interpretation risks sanctioning a new electoral system that would render the people s vote merely advisory. This Court should reject Appellants attempt to deprive Coloradans of their fundamental right to cast a meaningful and effective vote for President, not an advisory vote. This Court should affirm. ISSUES ON APPEAL Article II of the U.S. Constitution affords the States plenary authority to appoint their respective presidential electors to the 3

18 Appellate Case: Document: Date Filed: 08/22/2018 Page: 18 Electoral College in such manner as the Legislature thereof may direct. U.S. CONST. art. II, 1. The case implicates the following issues: 1. Under the political subdivision doctrine, are presidential electors subordinate state officers who lack Article III standing to challenge the constitutionality of a duly-enacted state law? 2. Even if standing exists, does Article II or the Twelfth Amendment forbid a State from requiring its presidential electors to honor the outcome of the State s popular vote when casting their ballots in the Electoral College? STATEMENT OF THE CASE AND FACTS I. Colorado, like most other States, binds its presidential electors to the outcome of the popular vote. Colorado, like the majority of States, binds its presidential electors to the outcome of the State s popular vote for President and Vice President. 1 Colorado s binding statute provides, Each presidential elector shall vote for the presidential candidate and, by separate ballot, 1 National Conference of State Legislatures, The Electoral College (Aug. 22, 2016) ( NCSL ), (last visited Aug. 2, 2018). 4

19 Appellate Case: Document: Date Filed: 08/22/2018 Page: 19 vice-presidential candidate who received the highest number of votes at the preceding general election in this state. COLO. REV. STAT (5) (2018). This binding statute has been on the books for more than half a century. See 1959 COLO. SESS. LAWS, p Colorado statute also prescribes certain logistical requirements for casting ballots in the Electoral College. The statute instructs the electors to convene in the office of the governor at noon on the first Monday after the second Wednesday in the first December following the previous presidential election. COLO. REV. STAT (1). The electors must take the oath required by law for presidential electors, id., and the Secretary of State provides them with the necessary blanks, forms, certificates, [and] other papers or documents required to enable them to properly perform their duties. Id. at (3). The electors ballots for President and Vice President shall be taken by open ballot. Id. at (1). Colorado statute also provides a mechanism to remove electors who refuse to comply with their obligation to follow the will of 5

20 Appellate Case: Document: Date Filed: 08/22/2018 Page: 20 Colorado s voters. The statute states, If any vacancy occurs in the office of a presidential elector because of death, refusal to act, absence, or other cause, the presidential electors present shall immediately proceed to fill the vacancy in the electoral college. Id. (emphasis added). As explained infra, Colorado s state courts have interpreted refusal to act to include an elector s decision to cast a ballot for someone other than the presidential and vice-presidential candidates who won the popular vote in Colorado. Appx II. Baca I: Appellants are denied preliminary injunctive relief. Federal Court Proceedings. In Baca I, two presidential electors, Polly Baca and Robert Nemanich, sought a preliminary injunction barring enforcement of Colorado s binding statute just 13 days before the 2016 Electoral College meeting. Appx The district court denied their motion, finding they had not established any of the 6

21 Appellate Case: Document: Date Filed: 08/22/2018 Page: 21 required elements for a preliminary injunction. 2 Baca I, No. 16-cv WYD-NYW, 2016 WL (D. Colo. Dec. 21, 2016) (written order memorializing verbal ruling found at Aplee. Supp. Appx ). Most importantly, the district court found that Ms. Baca and Mr. Nemanich were unlikely to succeed on the merits of their claims because Colorado s statute binding its electors to the presidential and vice-presidential candidates who won the State s popular vote is legally enforceable. Aplee. Supp. Appx. 54. The district court reasoned that granting Ms. Baca and Mr. Nemanich a preliminary injunction to permit them to vote their individual preferences in the Electoral College would undermine the electoral process and unduly prejudice the American people by prohibiting a successful transition of power. Id. The district court did not address whether Colorado s presidential 2 This Court may take judicial notice of the proceedings in Baca I and the related Colorado state court proceedings because they have a direct relation to the matters at issue here. St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979). Relevant pleadings from Baca I are included in the Supplemental Appendix for the Court s convenience. 7

22 Appellate Case: Document: Date Filed: 08/22/2018 Page: 22 electors possess Article III standing to challenge the State s binding statute. Ms. Baca and Mr. Nemanich filed an emergency appeal, but a panel of this Court declined to disturb the district court s decision. Baca I, 10th Cir. No (10th Cir. Dec. 16, 2016) (order at Aplee. Supp. Appx ). The Baca I panel agreed that Ms. Baca and Mr. Nemanich failed to satisfy their burden, stating they had not point[ed] to a single word in the Constitution that requires electors be allowed the opportunity to exercise discretion in choosing who to cast their votes for. Aplee. Supp. Appx. 37. But even putting aside that failure, the Baca I panel explained, Ms. Baca and Mr. Nemanich raised at best a debatable argument. Id. at The Baca I panel noted that Article II expressly grants to the States the right to appoint their electors in such [m]anner as the Legislature thereof may direct, and that the U.S. Supreme Court has described such power as plenary. Id. at 38 (quoting U.S. CONST. art. II, 1, and McPherson v. Blacker, 146 U.S. 1, (1892)). Accordingly, 8

23 Appellate Case: Document: Date Filed: 08/22/2018 Page: 23 the Baca I panel concluded that Ms. Baca and Mr. Nemanich had not demonstrated a likelihood of success on the merits that would justify preliminary injunctive relief. Like the district court, the Baca I panel did not address the electors standing at any length, stating only that it was satisfied [a]t this stage of the proceedings, and based on the preliminary record, that it was sufficient to provide [the electors] with standing to challenge Colorado s binding statute. Aplee. Supp. Appx. 34. The Baca I panel also declined to address whether Colorado s binding statute allows the State to remove an elector after voting has begun, observing that the issue was not raised by Ms. Baca or Mr. Nemanich in either the district court or on appeal. Id. at 39. In a footnote, however, the Baca I panel suggested that a State s attempt to remove an elector after voting had commenced would be unlikely in light of the text of the Twelfth Amendment. Id. at 39 n.4. The Baca I panel s footnote did not identify which text in the Twelfth Amendment it was relying on for its statement. 9

24 Appellate Case: Document: Date Filed: 08/22/2018 Page: 24 Baca I was not the only recent case to confront the issue of socalled faithless electors. In the run-up to the Electoral College vote on December 19, 2016, several other federal courts similarly declined to enjoin other state laws binding electors, finding the challengers were unlikely to succeed on the merits. See Chiafalo v. Inslee, No , 2016 U.S. App. LEXIS (9th Cir. Dec. 16, 2016); Chiafalo v. Inslee, 224 F. Supp. 3d 1140 (W.D. Wash. Dec. 15, 2016); Koller v. Brown, 224 F. Supp. 3d 871 (N.D. Cal. Dec. 16, 2016); Abdurrahman v. Dayton, No. 16-cv-4279 (PAM/HB), 2016 WL (D. Minn. Dec. 23, 2016). State Court Proceedings. Despite Ms. Baca and Mr. Nemanich s failure to obtain injunctive relief in federal court, the Colorado Department of State remained concerned that they or other presidential electors might nonetheless choose to violate Colorado s binding statute at the 2016 Electoral College meeting. The Department thus took action to develop a plan of succession in the event one or more of the electors refused to follow Colorado law. 10

25 Appellate Case: Document: Date Filed: 08/22/2018 Page: 25 Seeking to ensure that its succession plan comported with state law, the Colorado Secretary of State initiated a separate lawsuit against Ms. Baca and Mr. Nemanich in the District Court for the City and County of Denver. The court ruled that a presidential elector who fails to cast his or her Electoral College ballot for the presidential and vicepresidential candidates who won the State s popular vote would, as a matter of Colorado law, be deemed to have refus[ed] to act, thereby creating a vacancy in that elector s office. COLO. REV. STAT (1); see Williams v. Baca, Denver Dist. Court No. 2016CV34522 (Dec. 13, 2016) (ruling at Appx. 35). The state district court ruled that any such vacancy must be immediately filled by a majority vote of the presidential electors present, and that the Colorado Democratic Party (the party whose candidates won Colorado s popular vote) shall provide the electors with nominations to fill any such vacancy. Appx. 35. The state district court s order became final and not subject to further appellate review when the Colorado Supreme Court declined to consider the electors expedited appeal under COLO. REV. STAT

26 Appellate Case: Document: Date Filed: 08/22/2018 Page: (3). See Baca v. Williams, Colo. Supreme Court. No. 2016SA318 (Dec. 16, 2016) (order at Appx. 36). The 2016 Electoral College. On the day of the Electoral College, December 19, 2016, the Appellants each took an oath to cast their Electoral College ballots for the presidential and vice-presidential candidates who received the highest number of votes in Colorado in the preceding election. Appx Ms. Baca and Mr. Nemanich cast their Electoral College ballots for the candidates who received the most votes in Colorado, Hillary Clinton and Timothy Kaine. Appx ; Aplee. Supp. Appx. 59. But a third elector, Micheal Baca, immediately violated his oath by attempting to cast his ballot for John Kasich, the putative alternative candidate who did not appear as a presidential candidate on any general election ballot anywhere in the country. Appx. 17, 23. Consistent with the state district court s order, Mr. Baca s office was deemed vacant and he was replaced with another elector via a majority vote of the remaining electors. Appx. 17; Aplee. Supp. Appx. 59. The 12

27 Appellate Case: Document: Date Filed: 08/22/2018 Page: 27 replacement elector properly cast her Electoral College ballot for Hillary Clinton. Appx. 17. Congress counted the Electoral College ballots on January 6, 2017, and announced Donald Trump and Michael Pence as the persons elected President and Vice President. 163 CONG. REC. H189 H190 (daily ed. Jan. 6, 2017). They took office on January 20, III. Baca II: Appellants refile their federal complaint but are again denied relief. When the dust from the 2016 election settled, Ms. Baca and Mr. Nemanich voluntarily dismissed their complaint in Baca I without prejudice. Aplee. Supp. Appx But a mere nine days after the dismissal, they refiled substantially the same federal complaint against the Colorado Secretary of State. See Baca v. Williams ( Baca II ), No. 17-cv WYD-NYW (D. Colo.) (complaint at Aplee. Supp. Appx ). Ms. Baca and Mr. Nemanich later amended their Baca II complaint to add Micheal Baca as a third plaintiff. Aplee. Supp. Appx

28 Appellate Case: Document: Date Filed: 08/22/2018 Page: 28 After negotiations among the parties and with the district court s approval, Appellants submitted a second amended complaint in Baca II that substantially narrowed their claims and replaced the Secretary with the Department as the sole-named defendant. Appx. 8 19; Aplee. Supp. Appx Although Appellants had initially pleaded a voter intimidation claim under 52 U.S.C , they abandoned it; instead, they asserted a single constitutional claim under 42 U.S.C that challenged Colorado s binding statute as unconstitutional under Article II and the Twelfth Amendment. See id.; Appx In addition to declaratory relief, Appellants sought nominal damages of $1 each for the alleged violation of their rights in the 2016 Electoral College. Appx. 19. The Department moved to dismiss for both lack of standing under FED. R. CIV. P. 12(b)(1), and for failure to state a claim under FED. R. CIV. P. 12(b)(6). Appx The district court agreed with the Department on both grounds, dismissing the case in a thorough, 27- page opinion. Appx

29 Appellate Case: Document: Date Filed: 08/22/2018 Page: 29 On standing, the district court concluded that presidential electors are subordinate state officers who lack standing under the political subdivision doctrine to challenge the constitutionality of Colorado s binding statute. Appx The plaintiffs lose nothing by their having to vote in accordance with the state statute, the district court explained, save an abstract measure of constitutional principle. Appx. 77 (quoting Thomas v. Mundell, 572 F.3d 756, 761 (9th Cir. 2009)). It thus concluded that Appellants role as subordinate state officials subjects them to the political subdivision standing doctrine. Appx. 80. Despite Appellants lack of standing, the district court nonetheless proceeded to address the Department s alternative argument for dismissal that the complaint failed to state a claim upon which relief could be granted. Appx The district court concluded that the States may properly bind their presidential electors to the outcome of the State s popular vote without running afoul of Article II or the Twelfth Amendment. The lower court explained that Article II, 1, 15

30 Appellate Case: Document: Date Filed: 08/22/2018 Page: 30 commits to the States the exclusive power to appoint their presidential electors, which authority carries with it the attendant power to attach conditions and, if necessary, the power to remove electors. Appx. 81, 92. The district court also relied on Supreme Court precedent that approved a similar exercise of state authority to bind presidential electors. See Ray v. Blair, 343 U.S. 214 (1952). The district court explained that the Ray Court upheld a pledge requirement for presidential electors, finding that the Twelfth Amendment does not demand absolute freedom for the elector to vote his own choice. Appx. 84 (quoting Ray, 343 U.S. at 228). The district court also explained that longstanding historical practice is consistent with electors being bound or pledged to follow the will of the voting public. It thus rejected Appellants argument that the Framers original understanding of the Electoral College should override either longstanding historical practice or the Supreme Court s holdings. Appx Finally, the district court determined that Colorado s binding statute does not frustrate or interfere with any identifiable federal 16

31 Appellate Case: Document: Date Filed: 08/22/2018 Page: 31 policy. To the contrary, it found that Congress s decision to bind the District of Columbia s electors to the outcome of the District s popular vote reveals a federal policy consistent with Colorado s binding statute. Appx. 93. It therefore rejected Appellants reliance on federal preemption principles and dismissed Appellants challenge under both FED. R. CIV. P. 12(b)(1) and 12(b)(6). Appx Appellants now appeal. STANDARD OF REVIEW Appellants lawsuit challenges the facial constitutionality of Colorado s binding statute. Facial constitutional challenges are generally disfavored as [f]acial invalidation is, manifestly, strong medicine that has been employed by the [Supreme] Court sparingly and only as a last resort. Golan v. Holder, 609 F.3d 1076, 1094 (10th Cir. 2010) (quoting Nat l Endowment for the Arts v. Finley, 524 U.S. 569, 580 (1998)) (alterations in original). A plaintiff can succeed on a facial challenge only by establish[ing] that no set of circumstances exists under which the Act would be valid, i.e., that the law is unconstitutional 17

32 Appellate Case: Document: Date Filed: 08/22/2018 Page: 32 in all of its applications. Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008) (internal quotations omitted; alteration in original). Thus, a plaintiff bears a particularly heavy burden in raising a facial constitutional challenge. Golan, 609 F.3d at 1094 (internal quotations omitted). This case is on review following the district court s grant of the Department s Motion to Dismiss under both FED. R. CIV. P. 12(b)(1) and 12(b)(6). This Court reviews de novo an order dismissing a complaint for lack of jurisdiction under FED. R. CIV. P. 12(b)(1). Holt v. United States, 46 F.3d 1000, (10th Cir. 1995). Lack of standing is a jurisdictional defense that is properly presented in a motion to dismiss under FED. R. CIV. P. 12(b)(1). See, e.g., Citizens for Responsible Gov't State PAC v. Davidson, 236 F.3d 1174, (10th Cir. 2000). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). 18

33 Appellate Case: Document: Date Filed: 08/22/2018 Page: 33 A district court s order dismissing a complaint for failure to state a claim under FED. R. CIV. P. 12(b)(6) is similarly reviewed de novo. Van Zanen v. Qwest Wireless, L.L.C., 522 F.3d 1127, 1129 (10th Cir. 2008). To withstand a FED. R. CIV. P. 12(b)(6) motion to dismiss, a complaint must contain enough allegations of fact, taken as true, to state a claim to relief that is plausible on its face. Khalik v. United Airlines, 671 F.3d 1188, 1190 (10th Cir. 2012) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2009)). A claim should be dismissed under FED. R. CIV. P. 12(b)(6) if it asserts a legal theory not cognizable as a matter of law. Bd. of Cnty. Comm rs of La Plata v. Brown Retail Group, Inc., 598 F. Supp. 2d 1185, 1191 (D. Colo. 2009). SUMMARY OF THE ARGUMENT The district court s cogent and detailed opinion provides this Court with two independently sufficient grounds to affirm. I. Appellants lack Article III standing under the political subdivision doctrine to challenge Colorado s binding statute. The political subdivision doctrine deprives subordinate state officers of 19

34 Appellate Case: Document: Date Filed: 08/22/2018 Page: 34 standing to challenge the constitutionality of a state statute when they are not personally affected by the statute and their interest in the litigation is official rather than personal. This rule squarely applies here. Presidential electors are state officers and Appellants own complaint makes clear that their grievance is not a personal one, but rather an institutional injury grounded in the diminution of power that Colorado s binding statute allegedly causes to the electors official role. Appellants therefore lack standing, depriving the federal courts of subject matter jurisdiction. Appellants reliance on cases where the Supreme Court and this Court found standing in unrelated contexts is misplaced. The concept of legislator standing does not apply because presidential electors do not legislate and, even if they did, Appellants here make up only a small minority of Colorado s 2016 Electoral College delegation. The delegation as a whole did not authorize Appellants lawsuit, rendering legislator standing inapplicable. Nor do Appellants possess standing based on a purported interest in maintaining their role as former electors. The one- 20

35 Appellate Case: Document: Date Filed: 08/22/2018 Page: 35 day ministerial role is not analogous to ongoing public employment or similar positions involving continuous state funding. The Supreme Court s precedent finding standing in these types of situations, to the extent it remains binding precedent at all, is therefore not instructive here. Moreover, contrary to Appellants argument, this Court has not created an exception to the political subdivision doctrine that applies in this case. If anything, this Court s precedent strengthens the doctrine where, as here, the challengers claim is brought directly under the federal Constitution rather than a federal statute. II. Assuming Appellants are able to overcome their lack of Article III standing, this Court should nonetheless affirm because Appellants complaint fails to state a claim upon which relief can be granted. This district court correctly determined as a matter of law that Colorado s binding statute does not run afoul of Article II or the Twelfth Amendment. Its legal conclusion is solidly grounded in the Constitution s text, Supreme Court and lower court precedent, and 21

36 Appellate Case: Document: Date Filed: 08/22/2018 Page: 36 longstanding historical practice. These sources demonstrate that each of the dozens of state statutes that bind presidential electors is fully consistent with the Constitution. Finally, the district court properly rejected Appellants reliance on federal preemption principles. As shown by Congress s action in passing a law binding the District of Columbia s electors, state statutes that bind electors do not frustrate or interfere with federal objectives involving the Electoral College. To the contrary, state binding statutes promote federal objectives. This Court should affirm. ARGUMENT I. The district court properly dismissed Appellants lawsuit for lack of standing under Rule 12(b)(1). Here, as in every case, the plaintiff bears the burden of demonstrating Article III standing. Lippoldt v. Cole, 468 F.3d 1204, 1216 (10th Cir. 2006). The district court below dismissed Appellants suit because they failed to satisfy that burden. The district court s decision was correct. Just like other subordinate state officers, 22

37 Appellate Case: Document: Date Filed: 08/22/2018 Page: 37 presidential electors cannot sue their parent States to challenge the constitutionality of state law. The Supreme Court s decisions finding Article III standing in unrelated contexts including lawsuits by legislators and public servants seeking to retain ongoing employment and state funding do not abrogate the political subdivision doctrine. Nor has this Court created an exception to the doctrine where, as here, the plaintiff asserts a federal claim directly under the Constitution rather than a federal statute. This issue was raised and ruled on below. Appx , This Court should affirm for lack of standing. A. As former subordinate state officials, Appellants lack standing under the political subdivision doctrine. Under the doctrine of political subdivision standing, federal courts lack jurisdiction over certain controversies between political subdivisions and their parent states. City of Hugo v. Nichols, 656 F.3d 1251, 1255 (10th Cir. 2011). This doctrine is an important limitation on the power of the federal government. It guarantees that a federal court will not resolve certain disputes between a state and local government. 23

38 Appellate Case: Document: Date Filed: 08/22/2018 Page: 38 Cooke v. Hickenlooper, No. 13-cv MSK-MJW, 2013 WL , *10 (D. Colo. Nov. 27, 2013). A political subdivision cannot invoke (nor can a federal court impose) the protections of the United States Constitution for individuals against a state. Id. (citing Williams v. Mayor & City Council of Balt., 289 U.S. 36, 40 (1933)); see also Kerr v. Hickenlooper, No. 11-cv RM-NYW, 2017 WL , *7 11 (D. Colo. May 4, 2017) (finding political subdivisions boards of county commissioners, education, and special districts lacked standing to sue the State for violating the federal Guarantee Clause ). The doctrine applies not only to artificial political subdivisions, such as municipalities, but also to state officers who attempt to sue the State to challenge a state law. City of Hugo, 656 F.3d at 1255 n.3; accord Columbus & Greenville Railway v. Miller, 283 U.S. 96, (1931) (tax collector); Smith v. Indiana, 191 U.S. 138, (1903) (county auditor); Donelon v. La. Div. of Admin. Law ex rel. Wise, 522 F.3d 564, (5th Cir. 2008) (state insurance commissioner); Finch 24

39 Appellate Case: Document: Date Filed: 08/22/2018 Page: 39 v. Miss. State Med. Ass n, Inc., 585 F.2d 765, 774 (5th Cir. 1978) (governor); Cooke, 2013 WL , *10 13 (county sheriffs). State officers lack Article III standing to challenge the constitutionality of state statutes when they are not personally affected by those statutes and their interest in the litigation is official rather than personal. Donelon, 522 F.3d at (citing Cty. Court of Braxton Cty. v. West Virginia ex rel. Dillon, 208 U.S. 192, 197 (1908)). As stated by one circuit court, a public official s personal dilemma in performing official duties that he perceives to be unconstitutional does not generate standing. Thomas v. Mundell, 572 F.3d 756, 761 (9th Cir. 2009) (internal quotations omitted). Contrary to Appellants argument, presidential electors are without doubt state officers, not federal officers. The Supreme Court has repeatedly said as much. See Ray, 343 U.S. at 224 (stating electors are not federal officers or agents and that they act by authority of the state that appoints them); Burroughs v. United States, 290 U.S. 534, 545 (1934) (stating presidential electors are not officers or agents of the 25

40 Appellate Case: Document: Date Filed: 08/22/2018 Page: 40 federal government ); Fitzgerald v. Green, 134 U.S. 377, 379 (1890) (holding that presidential electors are no more officers or agents of the United States than are the members of the state legislatures when acting as electors of federal senators, or the people of the states when acting as electors of representatives in congress ). The vast majority of lower courts agree that presidential electors are state officers. See, e.g., Walker v. United States, 93 F.2d 383, 388 (8th Cir. 1937) (dismissing federal indictment because presidential electors are officers of the state and not federal officers ); Chenault v. Carter, 332 S.W.2d 623, 626 (Ky. 1960) (holding that presidential electors are state officers under Kentucky law); Elizabeth D. Lauzon, Annotation, Challenges to Presidential Electoral College and Electors, 20 A.L.R. Fed. 2d 183, 5 (2007) (collecting cases); but see Op. Br., p This of course makes good sense because the States are solely 3 Appellants wrongly rely on two outdated state cases to suggest otherwise. Op. Br., p. 20 (citing Stanford v. Butler, 181 S.W.2d 269 (Tex. 1944) and State v. Gifford, 126 P (Idaho 1912)). Both cases arise 26

41 Appellate Case: Document: Date Filed: 08/22/2018 Page: 41 responsible for appointing their respective electors and exercise plenary authority over their appointment. U.S. CONST. art. II, 1; McPherson v. Blacker, 146 U.S. 1, 25 (1892). Appellants attempt to cast doubt on these holdings by suggesting that, unlike most state officials, presidential electors exercise a federal function that Congress possesses authority to regulate. Op. Br., p. 20. This argument fails for two reasons. First, although Congress certainly could attempt to pass legislation that protects electors independence, to date it has not done so. In fact, it has done the opposite. See infra, pp (discussing Congressional act binding District of Columbia s electors to the outcome of the District s popular vote). Second, merely exercising a federal function does not immunize a state official from the political subdivision doctrine. Take the example from States that lack state binding statutes and neither discusses the requirements for federal Article III standing. In any event, both cases have been abrogated by more recent federal precedent establishing that, at least as far as the federal government is concerned, presidential electors are state officers, not federal officers. See Ray, 343 U.S. at

42 Appellate Case: Document: Date Filed: 08/22/2018 Page: 42 of a state insurance commissioner. He or she exercises important federal functions when administering complementary state and federal insurance programs like Medicaid and Medicare. See FERC v. Mississippi, 456 U.S. 742, 762 (1982) (recognizing the Federal Government has some power to enlist a branch of state government... to further federal ends ). And no one seriously doubts that Congress can pass federal legislation that regulates state insurance commissioners. See, e.g., 42 U.S.C (b)(2)(E)(i) (requiring state insurance commissioners to ensure segregation of certain plan funds so they are not used for abortion services). With that said, state insurance commissioners are nonetheless barred by the political subdivision doctrine from maintaining federal litigation against their parent State. See Donelon, 522 F.3d at Or take the example of a State s governor. Just like presidential electors, each state governor performs important federal functions that have their root in the federal Constitution. By way of example, each governor is required by the Constitution to issue writs of election to 28

43 Appellate Case: Document: Date Filed: 08/22/2018 Page: 43 fill vacancies that that occur in both the Senate and the House of Representatives. U.S. CONST. art. I, 2(4), & amend. XVII. They also make temporary appointments to fill vacancies in the Senate when permitted to do so by the state legislature. U.S. CONST. amend. XVII. Despite this, governors are no less subject to the political subdivision doctrine than any other state official. See Finch, 585 F.2d at 774 (stating governor s belief that state statute is unconstitutional is insufficient to confer standing and that he possessed no personal stake in the outcome of the case). The same analysis applies here. Although their tenure was brief and their federal function purely ministerial, Appellants role as former subordinate state officials subjects them to the political subdivision doctrine, precluding them from bringing this suit. This is the case even though electors are subject to federal constitutional and 29

44 Appellate Case: Document: Date Filed: 08/22/2018 Page: 44 statutory provisions that regulate the performance of their duties. 4 Appellants offer no authority to support their claim that the political subdivision doctrine is limited to state officers performing exclusively state functions. The district court thus properly concluded that Appellants suit is barred by the political subdivision doctrine. B. Neither Coleman v. Miller nor Board of Education v. Allen confers standing on Appellants. Appellants contend that they possess standing under both Coleman v. Miller, 307 U.S. 433 (1939), and Board of Education v. 4 Importantly, the constitutional provisions relied on by Appellants are not privately enforceable under 42 U.S.C Merely exercising a federal function under the cited provisions does not, by itself, confer constitutional rights that may be vindicated in federal court. More is required. The federal law that a plaintiff seeks to vindicate under 1983 must clearly and unambiguously confer an individual federal entitlement by using rights-creating language. Vague benefits or interests will not do. See Gonzaga Univ. v. Doe, 536 U.S. 273, (2002 Blessing v. Freestone, 520 U.S. 329, 340 (1997). Nothing in Article II or the Twelfth Amendment fits that bill. Cf. Jones v. Bush, 122 F. Supp. 2d 713, (N.D. Tex. 2008) (holding Twelfth Amendment did not confer standing on voters to enforce requirement that President and Vice President be inhabitants of different states). 30

45 Appellate Case: Document: Date Filed: 08/22/2018 Page: 45 Allen, 392 U.S. 236 (1968), notwithstanding the clear bar of the political subdivision doctrine. Op. Br., pp When taken together, Appellants assert, these two cases demonstrate that they have something meaningful at stake that grants them standing. Id. at 21. Appellants reliance on Coleman and Allen is misplaced. In Coleman, a legislator standing case, the Supreme Court determined that 20 of 40 Kansas state senators had standing to sue in an effort to maintain the effectiveness of their votes. 307 U.S. at 438. It deals only with legislator standing and contains no discussion of the political subdivision doctrine. Coleman is therefore uninstructive in this case because presidential electors do not legislate and, even if they did, Appellants no longer hold their positions as electors. See Karcher v. May, 484 U.S. 72, 81 (1987) (holding former legislators lack authority to pursue appeal because they no longer hold those offices ); Tarsney v. O Keefe, 225 F.3d 929, 939 (8th Cir. 2000) ( Even if these appellants might have had legislator standing at some point, such standing would have terminated when they left office. ). 31

46 Appellate Case: Document: Date Filed: 08/22/2018 Page: 46 Even assuming Coleman were relevant, its holding has since been narrowly cabined by Arizona State Legislature v. Arizona Indep. Redistricting Comm n, 135 S. Ct (2015). There, the Supreme Court concluded that the Arizona State Legislature had standing to challenge a voter initiative because it was an institutional plaintiff asserting an institutional injury in a suit authorized by votes taken in both the Arizona House and Senate. Id. at But the Court cautioned that the same is not true for individual legislators they lack standing in part because they are not authorized to represent the legislature as a whole in litigation. Id. (citing Raines v. Byrd, 521 U.S. 811 (1997)). Here, Appellants made up only three of Colorado s nine presidential electors in They were not authorized to represent Colorado s Electoral College as a whole, and no vote was taken by the members to authorize Appellants lawsuit against the Department. Appellants are therefore mere individual [m]embers who lack standing to challenge Colorado s binding statute. Arizona State 32

47 Appellate Case: Document: Date Filed: 08/22/2018 Page: 47 Legislature, 135 S. Ct. at 2664; see also Kerr v. Hickenlooper, 824 F.3d 1207, (10th Cir. 2016) (individual state legislators lack standing to challenge Colorado s Taxpayer Bill of Rights). Appellants claim fares no better under Allen. In that case, the Supreme Court (in a footnote) found standing for certain local government board members because they held a personal stake in retaining both their jobs and state funding. 392 U.S. at 241 n.5. But Allen did not discuss either the political subdivision doctrine or the bedrock principle that a plaintiff seeking to secure Article III standing must advance more than a generalized grievance or abstract injury. Schlesinger v. Reservists Cmte. to Stop the War, 418 U.S. 208, 217 (1974). The lack of such discussion is perhaps unsurprising since the appellees in Allen did not contest the appellant s standing. 392 U.S. at 241 n.5. Because of Allen s short shrift treatment of standing, other circuit courts evaluating intervening Supreme Court decisions have concluded that its footnote is not properly... considered as binding Supreme 33